The Good, The Bad, The Ugly – Does a Religious Discrimination Bill help Christians?

September 13, 2019

Two thousand and nineteen has been a fertile year for the profile of religious freedom in the public consciousness of Australia. In a manner that has not been seen for some time, the Bible and Christianity have been prominent in lead stories of the evening news and on the front pages of the newspaper. We have seen the return to government of the Liberals under a visibly Christian Prime Minister, Scott Morrison.

We have witnessed the David and Goliath struggle between Israel Folau and the Australian Rugby Union as he continues a court battle to defend his right to express his personal Christian beliefs in the face of his hostile employer. Religious freedom has never been so prominent in the general culture of Australia.

Human Rights Law Alliance

This year has been significant for the Human Rights Law Alliance also. Originally established and incubated within the Australian Christian Lobby under the very capable Martyn Iles (now ACL managing director), HRLA has now been established as a stand-alone charitable law firm dedicated to helping Christians and others who are under threat because of their Christian beliefs. Already in its first six months, HRLA has had a busy workload providing advice and representation to over forty Christians and Christian organisations in nearly all States and Territories.

HRLA has also been active on the speaking circuit and in the media providing exposure to religious freedom issues, and providing regular commentary and opinion on the state of our Australian nation. There is much to be thankful to God for. Without the support that Christians have been generously giving to HRLA, this work would not be possible.

Religious Discrimination Bill

The fundamental freedoms of Christians as individuals and as groups to speak, think, exercise conscience and associate in public and private are increasingly under threat as Australian society becomes more fragmented and moves away from its Christian roots, as the volumes of federal and state legislation expand at an exponential rate and as employment contracts morph into manifestos of groupthink.

Into this arena, Federal Attorney General Christian Porter has just entered the fray like a cowboy in an old-time spaghetti Western to release for public comment the long-awaited draft Religious Discrimination Bill. The genesis of the Bill was in the concerns that arose at the time of the same sex marriage postal vote, and the subsequent Ruddock Religious Freedom Review in 2018 that identified that Christian freedoms are inadequately protected under current Australian laws. With a steely eye and a steady hand the AG has brought his Bill to town in an attempt to address the current imbalance in Australian law and to provide stronger protections for religious freedom.

What does the Bill deliver? Will it protect Christians who are under attack for expressing their Christian faith? On HRLA’s initial review, it appears that the Bill contains some good, some bad and some ugly. At its heart, the Bill proposes to give religious people protection against discrimination that they might experience as result of religious belief and practice. That is good. A Christian who thinks they have been discriminated against is able to take their claims to a Freedom of Religion Commissioner and ultimately through the Courts. As is common for legislation, the format of the Bill is dry and technical and has a lot of detail. To better understand some of the good, the bad and the ugly, it is worth looking at the Bill in the context of current cases (which have been de-identified as appropriate) to use as case studies.

As has been well publicised, international rugby star Israel Folau was terminated by Rugby Australia for a personal social media post quoting scripture and calling people to repent from a big list of Biblical sins including homosexuality. Rugby Australia asserts that Folau has breached its Code of Conduct requiring all employees to support and display tolerance, diversity and inclusivity. Folau says that he has been sacked for expressing his religious beliefs.

Will the Bill protect Israel?

The Good. Because he is employed in NSW, Folau currently has no protection against religious discrimination by his employer except narrow protections under the Fair Work Act. The Bill would give Folau the ability to bring a religious discrimination claim.

The Bad. The Bill provides a get out of jail card for large employers who can show that the discrimination was necessary to avoid unjustifiable financial hardship. Rugby Australia could be let off the hook by showing that sponsorships were at risk. The Bill does not provide a definition of “religious activity” which means that this will be left to Courts who will become arbiters of theology and often taken very narrow approaches that strip the substance from protected religious convictions.

The Ugly. The Bill protects only “lawful” religious activity. Folau needs to show that his behaviour was a genuine activity arising from his Christian beliefs, but also that it is “lawful”. As speech and conduct are increasingly regulated by laws, regulations, by-laws and minor ordinances and as “hate speech” laws become more prevalent, the lawfulness of Folau’s quotation of the Bible might come under threat.

Case 2 – A public servant attacked at work – Jane

Jane* is a senior executive in the public service. She has voiced her support for traditional marriage and the positions taken by Margaret Court and Israel Folau in casual workplace conversations but has not expressly shared her Christian faith. Other employees mock Jane’s position and have complained that her statements make them feel ‘unsafe’. In her workplace, Jane faces growing ostracism and has been subject to performance management in her role. She is finding the environment in the public service increasingly hostile and will probably quit her job or take redundancy.

Is Jane protected by the Bill?

The Good. The Bill applies to States and the Commonwealth, so Jane as a government employee will be covered by the Bill. Where conduct is motivated by more than one reason, if one of the reasons is religious belief, then it will come within the Bill, so the fact that Jane has not expressly stated her beliefs in supporting Folau is not fatal to a claim that this is expression of belief.

The Bad. The Bill uses a standard test for direct discrimination that is used in other Acts but which is unsuited for protection of religious belief. It requires a Court to make a comparison between Jane and someone else who doesn’t hold the same beliefs but is otherwise in circumstances that are not materially different. Her employer could argue that anyone who spoke up in support of Court and Folau (regardless of religious belief) would have been treated the same way.

The Ugly. No express protections are given to religious freedom in the workplace. Because there is only express protection in the Bill for statements of belief outside the workplace, the Bill could be interpreted to allow employers to completely prohibit statements of faith inside the workplace.

Case 3 – A photographer hit with a discrimination claim – Jason Tey

Jason Tey is a WA photographer who was the subject of a discrimination complaint after he informed a lesbian couple that he was a Christian. Jason did not refuse the couple services, but rather informed them that they might want to approach another photographer because he had a conflict of belief on same-sex marriage. The Equal Opportunity Commission referred the matter to the State Administrative Tribunal.

Is Jason covered by the Bill?

The Good. The Bill does protect religious people from being sued under other discrimination laws where they make a statement of belief.

The Bad. The Bill does not protect service providers who feel compelled by conscience not to use their skills for the celebration of practices that are contrary to their deeply held religious beliefs. After the same sex marriage postal vote, this was a major concern for religious freedom that was raised and which has come to fruition locally and internationally. Conscientious objection protections in the Bill are tortuous and seem to have very narrow application to health practitioners only.

The Ugly. The Bill states that it will not protect statements of belief that “harass or vilify” a group of people. This is a very nebulous test. What constitutes harassment and vilification will be legally problematic and Courts will have liberty to set a low bar. As expressions of Christian belief on sexuality and gender issues are often seen as bigoted and hateful, it is possible that this exemption will largely strip this protection of any real effect for Christians.

Case 4 – A foster couple rejected as “unsafe” for their Christian views on sexuality – Chris and Mary

Chris and Mary* are a couple who applied to be temporary respite foster carers for children between 0-5. Their application was promptly terminated and they were labelled as ‘unsafe’ by the agency due to their expression of Christian convictions concerning gender and sexuality which went against the agency’s LGBTQ Policy. Chris and Mary said they would love any foster child who was placed with them, but that they couldn’t affirm or promote an identity that conflicts with their Christian convictions.

Are Chris and Mary protected by the Bill?

The Good. The Bill protects Christians who aren’t targeted directly, but who receive discriminatory treatment that disadvantages them because of their religion because of the application of a condition or policy (indirect discrimination). The Bill protects religious belief and also religious activity that is motivated by that belief.

The Bad. The Bill gives an exemption for indirect discrimination if it is “reasonable”. This standard is extremely low. It is inconsistent with international law protections for religious freedom which only allow suppression of religious freedom that is “necessary” by law or to protect the fundamental freedoms and rights of others. Activist tribunals and judges can easily use this “low bar” test to hollow out any protection that these provisions give Christian freedoms.

The Ugly. The Bill includes a four-step test for reasonableness that is complex, vague and uncertain. Similar tests internationally have been used by activist Tribunals and Courts to severely infringe on religious freedom. Christians who take claims will be required to mount complex arguments on each of the steps of reasonableness set out which will add to the time and cost of taking claims and which will discourage many Christians from accessing the protections of the Bill.

Key Takeaways from a First Review of the Bill

Christian Porter’s draft Bill is complex and these case studies only give a small snapshot of the issues. However, looking at the Bill from the perspective of some existing Christian freedom cases, there are a few key takeaway points that can be made about all that is good, bad and ugly.

The Bill is a good first step and a welcome recognition of the fundamental importance of religious freedom. It is not a magic pill that will address all of the concerns. It often reproduces the provisions other discrimination laws for different protected attributes without making necessary adjustments for the unique nature and broad character of religious freedom rights.

Many Christians won’t be protected. The Bill will require significant amendment to provide real protection to Christians who are discriminated against because of their religious freedom and to deal with those things that are bad and ugly in the Bill.

The Bill puts Courts in the position where they will be arbiters of theology and will decide what religious beliefs are reasonable. Given the increasing religious illiteracy in Australian society, this is dangerous and may severely limit the protections that the Bill seeks to provide.

The Bill does not address fundamental concerns about the risk of claims to religious people or the protection of their conscience arising from the legalisation of same sex marriage in 2017. Australian Christians could see themselves on the end of costly, stressful and time-consuming claims from activists, as has occurred in international jurisdictions.

Christians are going to face real hurdles with claims of both the direct and indirect discrimination under the current form of the Bill. Low bars to the exemptions and the use of problematic comparison regimes will limit the utility of the Bill.

Many terms need more precise definition to give clarity and certainty. The use of words like “vilify” and “harass” without definition is a problem. It will hollow out many of the protections in the Bill once they get into the hands of tribunals and Courts.

The Bill does not address where competing rights interact and how to resolve conflict. There are key recommendations by the Ruddock Religious Freedom Review about the internationally recognised principles that should be included in legislation. This is missing altogether from this Bill.

The Bill does not protect faith-based schools that are seeking to continue to operate in accordance with their religious convictions and traditional teachings.

In short, there is a long way to go before this Bill will be in a form that provides meaningful protection for Christians.

There is work to do

There are many Christian groups and organisations including HRLA who are engaging with government about the shortcomings in the draft Bill. The Australian Christian Lobby, our sister organisation, is working hard to speak to Federal MPs and Senators about fundamental concerns with the Bill. All of this work is possible only because of the donation and prayers of ACL supporters. Prayer is an essential tool. But there is other work to do. Christians need to contact their local MPs and talk with them about the fundamental importance of religious freedom and how Christians need to be protected to enable them to continue living Christian lives.

In the end, no piece of legislation is going to guarantee the preservation of religious freedom. A Religious Discrimination Bill only gives some breathing space to allow Christians to do what Christians are called to do – be a salt and a light in a dark and tasteless society. Perhaps the highest calling for Christians concerned about religious freedom is to continue to live their faith, to let their light shine before the world so that it will give glory to God. Titus 3:1 calls us “to be submissive to rulers and authorities, to be obedient, to be ready for every good work, to speak evil of no one, to avoid quarrelling, to be gentle, and to show perfect courtesy toward all people”. May that be the aim of all Christians who are busy working on this Religious Discrimination Bill.